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The National Advertising Division (NAD) recently reviewed advertising by Cosmerderm BioSciences, Inc. for its TriCalm anti-itch product. The advertisements at issue state that TriCalm provides itch relief for itches associated with aging and summer and winter weather. Some of the advertisements expressly state that “TriCalm is five times more effective than hydrocortisone 1% at reducing itch,” and that the product is “Dermatologist Recommended,” which appeared in close proximity to the statement “for itching, burning, and stinging.”

The NAD found that the test the advertiser used to substantiate the comparative efficacy of its product at reducing itch was flawed for several reasons. For instance, the tested products were not applied according to the products’ use instructions and the test subjects did not reflect the “aging” population referenced in the advertising. Thus, the NAD found that the product performance claims lacked adequate substantiation. Additionally, the advertiser failed to demonstrate that the cowhage-induced itch model is a reliable substitute for testing naturally occurring chronic itching, which TriCalm was advertised to relieve. Thus, the NAD concluded that the advertiser failed to adequately substantiate the advertised benefits for the targeted population and winter-related itching highlighted in the advertisements. The NAD recommend that the advertiser discontinue the comparative claim. The NAD also recommend that the advertiser discontinue the claim that most topical itch relievers are ineffective, including because the advertiser’s studies did not account for the vast majority of products on the market.

Finally, with respect to the “Doctor Recommended” claim, NAD noted that such claims carry a great deal of weight with consumers and consequently must be supported by well-controlled physician surveys. The NAD concluded that the advertisers survey did not support this claim, including because only 35.69% of the doctors surveyed had actually recommended the product to their patients, which NAD deemed not to meet the threshold requirement of a “substantial percentage of doctors.” Thus, NAD recommended that the advertiser discontinue the “Doctor Recommended” claim as well.

TIP: Comparative efficacy claims should mirror the testing upon which the advertiser is relying to substantiate those claims. General claims based on testing conducted under specific conditions or on subjects that do not match the population that is referenced in the advertising are likely to be found to be unsubstantiated.

Compare jurisdictions: Arbitration

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